Democratic Northwest. [volume] (Napoleon, Ohio) 1869-1894, 1887-09-08
The Bench and Bar.

course of compilation by the publishing
house of D. Mason & Co., of Syracuse, N. Y.
The chapter, however, is being written by
one of the leading lawyers of Henry county.
BENCH AND BAR.
It was many years after the organization
of Ohio before the Northwestern portion of
the State had either Bench or Bar; and for a
long time after the territorial government
had ceased, the only courts known were the
Indian council and the court martial, while
the bar consisted of the feathered chief and
the uniformed commander.
The jurisprudence of the State, as of all
the Northwestern territory embraced in the
Virginia secession, was founded on the COM
mon law of England, modiisd and con-
strued by the several charters of King James
l., to the early settlers of Virginia and by
the ordinance of 1857. In 1898, by the Ter
ritorial Legislature, a statute was adopted
from Virginia declaring "that the common
law of England and all statutes made in aid
of the common law prior to the fourth year
of James First, which were of general
nature, should be a rule of decision until re-
psaled." By the second section of the act of
February %, 1906, this act was repealed, but
by the first section of the act was re-enacted;
it was again repealed January 2, 1906. So it
may safely be said that the British statutes
never had any effect in Ohio save as
adopted by the legislature. II Chase, 100, 512,
52S.l The English common law, however,
so far as reasonable in itself, suitable to the
condition and business of our people, and
consistent with the letter and spirit of the
Federal and State Constitutions and Statutes,
ever has been and is followed by our courts
and may be said to constitute part of the
common law of Ohio. r o. s. 3s7.l
After the organization of the State by the
adoption of the constitution of 1902, the writ
tenlaw of Ohio may be said to have commeR-
ced but the practice was far from uniform, land
it was not until 1916, when the able work of
JOSEPH r. SWAN, whose name needs no It'll Q
to the Bar of Ohio, "Practice and Preee-
dents, twas published, that uniformity began
to prevail with either Bench or Bar. Previ-
GUS to that time, paraphraising from the
preface of that able work, most of the men,
bers of the Bar and Bench, whose opinions
moulded our judicial system, had pursued
their legal studies in other States of the
Union, and brought with them high respect
for the practice and decisions of the courts
where they were educated. Almost all the
States of the Union had been thus represent
ed at our Bar and upon our Bench, and had
produced very great diversity of law in diff
common law existed to some extent in each
judicial circuit. In one, the English COM
mon law was looked to as the only pure
fountain; in another, the common law of
England as modified by the courts of New
York; in another, the common law of Massa-
chusetts: in another, of Connecticut; in an
other, of Pennsylvania. The statutes of the
State indicated the same heterogenousness.
The practice act came from New Jersey; the
attachment law from Pennsylvania; the ad-
the non-impris0nment act from New
York. This state of things sometimes gave
rise to divisions of opinions in the court in
bank, and often subjected the adjudications
to severe and unjust criticism.
It is certainly no disparagement to the
many able jurists who aided in giving to
Ohio uniform and perfect system of iuris-
prudence, to say that to Judge SWAN is the
Bench and Bar of Ohio most indebted for
the desirable consumation; and his work at
once became the law of practice to Bench
and Bar throughout the State, and remained
so until the enactment of the code of civil
procedure in 1858, after the adoption of the
Constitution of 1851.
The common law, as to crimes and the
mode of procedure in criminal cases, was
never in force in Ohio-all this was the mat
ter of legislative enactments. / o. 1872, o.
345, 10 o. s. 2s7.]
The history of the various revisions and
codifcations of the statutary law and modes |
of procedure within Ohio is interesting, and |
is 30 concisely and accurately stated in the
preface to the first addition of the revised |
statutes made by the codifying commission
appointed under the act of March q, 1875,
and published in 1880, that we copy literally:
"The first revision was made during the
session of the legislature held at Chillicothe,
in 1SO4-5, at which all the laws with few ex-
ceptlons, adopted by the governor and judg-
es, or enacted by the legislature, under the
territorial government. we're repealed. That
revision embraced statutes for the admins
tration of justice, the conveyance of proper
ty, the collection of the revenue, the organi-
cation of the militia, and the punishment of
crime, and other statutes previously adopted
or enacted, were amended and re-enacted.
"With these statutes for basis, other leg
islatures followed the example; and, accord
lngly, the laws were revised at the session of
the session of 1815-1816, the ses-
sions of 1S23-1S24, and the session of 1885,
1881, each revision being an improvement on
that which preceded it, the practice and other
remedial statutes gradually becoming more
liberal, and the penal enactments are hu-
name.
''In 1886, the statute relating to felonies
was again revised, and further provision was
made to simplify the practice; and in 1910,
an act relating to the settlement of the
estates of deceased persons, based on the
statute of Massachusetts,, was prepared by
Joseph r. Swan, and enacted by the general !,
The principal part of it has re-
mained without change to the present day.
At the same session the statutes in relation
L. iii, olao4;ops oDd afhar auhiacta wara